The State v. Manicke

• Decision Date: 08 June 1897
• Citation: 41 S.W. 223,139 Mo. 545
• Parties: The State v. Manicke, Appellant
• Court: Missouri Supreme Court

41 S.W. 223

139 Mo. 545

The State v. Manicke, Appellant

Supreme Court of Missouri, Second Division

June 8, 1897

Appeal from Maries Circuit Court. -- Hon. C. D. Corum, Special Judge.

Affirmed.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) Indeed, the statute of limitations can in nowise be made to apply unless it be first held that defendant was being tried for the commission of the first offense as well as the second. It is well settled by a long line of authorities that upon a trial such as this "punishment is for the last offense committed and is rendered more severe in consequence of the situation into which the defendant has brought himself." "The defendant is not again punished for the first offense, but the punishment for the second is increased because of his persistence in the perpetration of crime." People v. Stanley, 47 Cal. 116; State v. Engalls, 48 Wis. 647; State v Moore, 121 Mo. 519. (2) The record fails to present a single instance where defendant was permitted to be cross-examined of and concerning matters upon which he was not questioned in chief, and to which objections were made and at the time saved by defendant. (3) Defendant alleges that the trial court committed reversible error in giving instruction 4, defining the credence to be given defendant's testimony as a witness, for the reason that it is in conflict with the doctrine laid down in State v Austin, 113 Mo. 543. The record shows this instruction to have been asked for by the defendant. Error committed at the instance of the party alleging the error can not be taken advantage of by him. State v. Jackson, 99 Mo. 63; Alexander v. Clark, 83 Mo. 482; Schmitz v Railroad, 119 Mo. 256; Francis v. Railroad, 127 Mo. 658; Smith v. St. Joe, 122 Mo. 643.

Burgess. J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess. J.

-- On the eleventh day of November, 1896, the defendant was convicted in the circuit court of Maries county of malicious assault upon one John G. Slate, and his punishment fixed at ten years' imprisonment in the penitentiary, under an indictment theretofore found by the grand jury of said county. From the judgment and sentence he appealed.

The indictment charges, and the evidence showed, that on the seventeenth day of October, 1889, the defendant was sentenced to the penitentiary by the circuit court of said county for defiling his ward, a stepdaughter under the age of eighteen years; and that after complying with his sentence he was discharged from the penitentiary, on August 1, 1893.

It appears that for some time before the assault by defendant upon Slate there had been ill feeling between them and that on that day, to wit, September 6, 1896, about sundown, Slate was sitting upon a box at the corner of a building in Vienna engaged in a conversation with a man by the name of Jones, when defendant approached him from the northwest having at the time his hands in his pockets, and when within sixteen to eighteen feet of where Slate and Jones were he took his pistol from his pocket, and snapped it twice at Slate, who at that time jumped behind the building. Slate at once reappeared, when defendant again snapped his pistol twice at him, but it failed to fire as in the first instance. The defense interposed was that of self-defense.

The defendant is not represented in this court, but in the court below he was represented by counsel who filed in his behalf a motion for a new trial, assigning as grounds therefor the following: "First, because the court erred in admitting the record of former conviction as evidence in this cause; second, because the court erred in allowing the defendant to be cross-examined as to matters not testified to on his direct examination; third because the court erred in giving instruction number 4 defining the credence to be given to defendant's testimony as a witness, said instruction being in direct conflict with the doctrine laid down in the case of the State v. Austin, in 113...